Jonathan Sumption shows a certain naivety

This post was originally published on the Guardian Website and is reposted here with thanks.

In his FA Mann lecture, Jonathan Sumption QC reveals himself to be a judicial conservative. Nothing wrong with that, of course, and perhaps no surprise to his friends and colleagues.

But it does remind us how little we know about the newest recruit to the supreme court. For more than half a century, nobody else has joined the UK’s final court of appeal without full-time judicial experience. In assessing the approach to judicial law-making that new justices are likely to adopt, we can study the judgments they have delivered in the lower courts. With Sumption, all we really have is this lecture.

Its message is that policy decisions are best left to ministers, to parliament and, ultimately, to the electorate. Sumption is highly critical of former judges, such as Lord Steyn, who have suggested that the courts have a responsibility to keep parliament in check.

He also attacks courts that have granted judicial review and quashed ministerial decisions because, in reality, the judge does not happen to like what the minister has decided – rather than because the minister acted unfairly.

And he supports the position adopted by the government this week when it took over the political leadership of the Council of Europe, which is responsible for the European convention on human rights.

“There is no reason why the protection of convention rights should necessarily require the same measures in a country like the United Kingdom, which has for many years enjoyed a strong tradition of public service, a high degree of participation in public life, functioning democratic institutions and an independent judiciary, as they do in countries like, say, Romania, Russia or Turkey,” the QC said.

Lest he be misunderstood, Sumption stressed that his lecture was not intended to suggest that parliamentary accountability was enough or that judicial review was unnecessary.

“What it is intended to suggest is that parliamentary scrutiny is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making,” he said. “It is also the only way of doing so that carries any democratic legitimacy.”

Sumption’s aversion to judicial law-making is certainly no ground for arguing that he will not be a valuable member of the supreme court when he joins it at some unspecified time next year – even though the court is inevitably involved more with questions of policy than any of the courts below it.

But it does suggest a certain naivety. Parliamentary scrutiny is certainly not enough to ensure that statues are properly drafted, internally consistent and fair in their application. Cases that reach the supreme court are likely to involve issues that have simply not been contemplated by parliament. Ministers do, sometimes, take broad powers and use them to make improper decisions. We rely on the supreme court to put these right.

What if the courts go too far and decide a case on policy grounds, as Sumption says they did in the 1994 Pergau Dam case? The answer is that parliament always has the last word. As he notes, MPs simply voted through the funds needed for the construction project in Malaysia that the foreign secretary, Douglas Hurd, had chosen to support.

Why is Sumption so averse to judicial law-making? He fears that if judges are perceived to be reviewing the merits of legislation or executive policy, there will be pressure for “some kind of democratic input into their selection” from either parliament or the government. That, he fears, would politicise the bench and undermine judicial independence.

Given the criticism of Sumption’s own appointment, one can understand his feelings. But I suspect that greater democratic input into judicial appointments will follow from the inquiry currently being conducted by the House of Lords constitution committee.

If this means we know a little more about our senior judges before they take office, it will surely be no bad thing.

1 comment

Anthony Faircloughsaid:

09/11/2011 at 15:30

Of course, one could argue that the Supreme Court (or any court on Judicial Review) stepping in where a law is poorly drafted or internally inconsistent is not judicial law-making. It’s certainly not the judges imposing their own view of what the law should be regardless of what parliament has expressed.